FTC maverick a mystery on Google case

A maverick member of the Federal Trade Commission, J. Thomas Rosch may hold the keys to whether the agency’s handling of the antitrust case against Google is viewed as a Democratic attack on Big Business or a bipartisan effort to ensure Internet competition.

Rosch is a Republican appointee who has sometimes been a renegade — pushing the agency to be more aggressive yet arguing for limits in its application of antitrust laws.

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FTC commissioners could decide any day now whether to file an antitrust case against Google over the firm’s search business and use of industry standard patents against rivals — or settle for certain behavioral conditions that reports indicate might not even touch on Google’s dominance in Internet search. And while it’s generally believed that the two Democratic appointees will support FTC Chairman Jon Leibowitz, also a Democratic appointee, and that the newest GOP panelist will likely side against them, it’s unclear where Rosch will fall.

“At this juncture, I don’t know what’s going to happen on the Google case,” Rosch told POLITICO in a wide-ranging interview in which he outlined some of his disagreements with Leibowitz while calling him one of his “closest friends” at the commission.

The Google case touches a nerve at the FTC — and particularly with Rosch — on how to interpret the FTC Act’s Section 5 statute, which is broader than the antitrust laws and not only covers illegal monopolization charges but also prohibits “unfair methods of competition” and deceptive acts and practices. Many conservatives argue that the FTC should keep its Section 5 cases to those dealing with monopoly allegations.

“I don’t think we ought to treat Section 5 as an open-ended unfair competition statue. There have to be some limiting principles,” Rosch said. “I don’t know if Jon’s view that Section 5 is as broad as all outdoors … will prevail. I don’t know.”

In response, Leibowitz’s office said that “in the handful of Section 5 cases brought by the FTC, the commission has always applied a principle of limitation. Commissioner Rosch has joined the chairman in the two major Section 5 cases to date — Intel and N-Data.”

Leibowitz believes in applying the plain language of the statute, according to a statement from his office.

Rosch harkened back to the Intel case, which the FTC brought in 2009 and settled in 2010. Rosch agreed to bring the case but wrote a dissenting opinion. “I was tarred with the same brush. I’m never going to do that again,” he said.

Google has been the subject of a 19-month investigation at the FTC over whether its search business is anti-competitive. More recently, the FTC began to look at whether Google’s pursuit of injunctions against violators of its standards-essential patents is also a violation of Section 5.

This week, the commissioners may have revealed some of their thinking on Google with a rare split decision on an unrelated case. The majority, including Leibowitz, argued that a firm that seeks injunctions when it comes to patents that are part of industry standards is violating Section 5.

Readers' Comments (1)

Truth is that Google has beat them all w/a Search Feature above and beyond theirs ... that said,

The real Questions Are

1-"How Far May any Company in any venue Go Toward Blocking Competition,

2- Inhibiting Growth of Competition via it's own firmware,

3- limiting it's own users to a point of isolation from competition

4- Prohibiting anything that seems a threat to their business?"

In an Ayn Rand Republican Feudal System's Whig Party Path = It should be no suit against Google; yet, it appears the GOP is somehow going against its own tenet and Democrats well know what the "Other-Search CEO's want"

Most US Citizens have no idea what's at stake in this hearing of "Rights vs Fears" = They do know which Company They Personally Prefer . . . FTC votes based on their Party-Donors ('tho Rosch claims FTC is Independent, duh) and in this case that may be OK.